The International Criminal Court, the Security Council and Darfur: A Critique
©2017
Textbook
72 Pages
Summary
This book considers the relationship between the International Criminal Court (ICC) and the United Nations Security Council (UNSC) under three major aspects: triggering the jurisdiction of the Court when the Security Council adopts a resolution requesting that under Article 13 (b) of the Rome Statute; delaying the Court’s action by UNSC according to Article 16 of the Rome Statute; and the cooperation between the two institutions in cases where the Council refers to the Court situations, and also with regard to state-party referrals, and situations initiated proprio motu by the Prosecutor.
The book analyzes this relationship according to Resolution 1593 (2005) by which the Security Council assigned the situation in Darfur to the Court. It highlights the main flaws of this Resolution, and discusses the African Union’s position towards the Court.
The book analyzes this relationship according to Resolution 1593 (2005) by which the Security Council assigned the situation in Darfur to the Court. It highlights the main flaws of this Resolution, and discusses the African Union’s position towards the Court.
Excerpt
Table Of Contents
Mahmoud, Ammar: The International Criminal Court, the Security Council and Darfur:
A Critique, Hamburg, Anchor Academic Publishing 2017
Buch-ISBN: 978-3-96067-179-4
PDF-eBook-ISBN: 978-3-96067-679-9
Druck/Herstellung: Anchor Academic Publishing, Hamburg, 2017
Covermotiv: © Kandice Ardiel
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TABLE OF CONTENTS
Introduction ... 1
1 Overview of the International Criminal Court ... 4
1.1
Development of the international criminal justice:
from early history to the establishment of the ad hoc Tribunals ... .. 4
1.2
Establishment of the ICC ... 14
1.3
Jurisdiction of the International Criminal Court ... 18
1.3.1 Jurisdiction ratione materiae of the court ... 18
1.3.2 Jurisdiction ratione personae ... 21
1.3.3 Jurisdiction
ratione loci ... 22
1.3.4 Temporal
Jurisdiction
or
ratione temporis ... 24
2 The Relationship between the ICC and the UNSC ... 25
2.1
Referring a situation to ICC ... 28
2.2
Deferral of the ICC action ... 31
2.3
Cooperation between the UN Security Council and the ICC ... 37
3 Darfur and the ICC ... 41
3.1
Conflict in Darfur ... 41
3.2 UN Security Council's response ... 43
3.3 Darfur referral to the ICC ... 48
3.4 African Union's reaction ... 52
Conclusion ... 55
Bibliography ... 58
1
INTRODUCTION
The relationship between the International Criminal Court (ICC) and the United
Nations Security Council (UNSC) is a matter of great legal and political
controversy. Since the ICC is an international judicial body independent of the
United Nations system, and the UNSC is a political body by nature, such
relationship would likely make political considerations, on SC's part, to interfere
with the ability of the Court to undertake prompt and impartial investigations and
prosecutions of the most serious of all international crimes.
The objective of this book is to consider the relationship between the ICC and the
UNSC under three major aspects:
Triggering the jurisdiction of the Court when the Security Council adopts a
resolution under chapter VII of the UN Charter requesting so according to
Article 13 (b) of the Rome Statute,
Delaying the Court's action by UNSC according to Article 16 of the Rome
Statute,
Cooperation between the UNSC and the ICC in cases where the Council had
referred to the Court situations and with regard to state-party referrals, as
well as situations initiated proprio motu by the Prosecutor.
The following issues will be addressed in the book:
1.
How International Criminal Justice is developed, and why was the ICC
established?
2
2.
What are the features of the relationship between ICC and UNSC in light of
Rome Statute?
3. How is this relationship put into practice in UNSC Resolution 1593 (2005)
which referred the Situation in Darfur region of Sudan to the ICC?
4. What are the Flaws in Darfur Referral Resolution?
5. Why the African Union took its negative stand towards the ICC?
There are some aspects in the relationship between the ICC and the UNSC
which cannot be analyzed in this book as it is confined to the relationship based
on the UNSC powers under the Rome statute. Accordingly, the book will not cover
the relationship agreement between the UN and the ICC, which entered into force
on 4 October 2004 as it is out of the scope of the book. Moreover, the relationship
between the two institutions will be more focused and analyzed in the context of
Darfur situation only.
This book is structured into five parts; an introduction, three chapters and a
conclusion. Chapter 1 presents an overview of the ICC by giving general
background of the evolution of the International Criminal Justice from early
history up to the establishment of the ad hoc Tribunals. It also includes the
establishment of the ICC and the jurisdiction of the Court.
Chapter 2 focuses on the three aspects of the relationship between the ICC and the
UNSC as stipulated in Rome statute; the UNSC's referral power, UNSC's deferral
power, and the cooperation between the two institutions.
3
Chapter 3 discusses the relationship between the ICC and the UNSC according to
Resolution 1593 (2005) by which the Council referred the situation in Darfur to
the Court. It also highlights the main flaws of this Resolution, and gives a
discussion on the African Union's position towards the Court.
The conclusion gives a summary of the issues addressed in the book and offers the
research findings.
4
1
OVERVIEW OF THE INTERNATIONAL CRIMINAL COURT
1.1 Development of the international criminal justice:
from early history to the establishment of the ad hoc Tribunals
The idea of addressing serious atrocities and bringing to justice those who are
responsible of their commission is not a new one; rather it traces its roots back
thousands of years in history. According to some scholars "war criminals have
been prosecuted at least since the time of the ancient Greece, and probably well
before that".
1
In the 13th century, a trial was held in Naples for Conradin, the Duke
of Swabia, after which he was beheaded on 29 October 1268. That trial was
considered by Mahmoud Cherif Bassiouni as "the first prosecution for initiating an
unjust war".
2
However, it is believed that "the earliest trial for war crimes seems to
have been that of Peter von Hagenbach, in the year 1474".
3
It is to be noted that
until then the two distinct ways of looking at war, the legitimate reasons a state
may engage in war (jus ad bellum) and how wars is carried out (Jus in bello), were
unknown. The principal modern legal source of jus ad bellum derives from the
Charter of the United Nations, while Jus in bello based on recognized practices of
1
William A. Schabas, An Introduction to the International Criminal Court , Cambridge University
Press, 3 edition 2007), p. 1
2
M. Cherif Bassiouni, International Criminal Law: A Draft International Criminal Code, Sijthoff
and Nordhoff International Publishers, The Netherlands, 1980, p.8.
3
Edoardo Greppi, The evolution of individual criminal responsibility under international law,
International Review of the Red Cross, Volume 81, Issue 835, September 1999, p. 531.
5
war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907,
Geneva Conventions of 1949 and the Additional Protocols of 1977).
4
Therefore, it could be argued that the desire of having a judicial body to try the
perpetrators of the heinous crimes was always a matter of interest to the global
community. However, it was not until the 19th century that the idea of creating an
international criminal court was first emerged when Gustav Moynier, one of the
founders of the International Committee of the Red Cross, suggested in 1872 a
permanent court to deal with the crimes of the Franco-Prussian War of 1870.
Monnier's idea was looked at as "much too radical for its time"
5
, because national
sovereignty was still absolute, supreme, and sensitive to challenge.
Significant steps towards codifying certain rules and laws which intended to
govern the conduct of war and set limitations on the expansion of armed forces
and reduction in the deployment of new armaments are represented by the Hague
Conventions of 1899 and 1907. Those treaties were reached after international
deliberations during the peace conferences at The Hague in the Netherlands. The
outcome of the two conferences was significant in that they "formed the bedrock of
modern laws of war, and are generally considered by international law scholars to
be the crowning achievement of the effort to humanize war through law".
6
But still
there was no international judicial body to enforce these laws.
4
See: Karma Nabulsi, Jus ad Bellum / Jus in Bello, available at: http://www.crimesofwar.org/a-
z-guide/jus-ad-bellum-jus-in-bello/, accessed on 25.06.2012.
5
Schabas, 2007, p. 2.
6
Jackson Maogoto: Early Efforts to Establish an International Criminal Court. Chapter 1 in José
Doria et al, The Legal Regime of the International Criminal Court, Martinus Nijhoff Publishers,
Leiden, The Netherlands , 2009, p.9.
6
After the end of the World War I, which resulted in tens of thousands of victims
and flagrant violations of international customs and laws of war committed by the
German troops, the need for holding criminally liable those responsible for such
atrocities and "for a supreme offense against international morality and the
sanctity of treaties"
7
, as well as finding the legal rules and basis that would prevent
such kind of actions was reemerged.
The allied victors in the war went to establish investigative commissions to specify
the violations of the laws and customs of war and to punish German war criminals
for the crimes committed, such as; the Allied Commission on the Responsibility of
the War and on the Enforcement of Penalties, which charged with a hard
responsibility.
A major development in International Criminal Law was "Article 227 of the Treaty
of Versailles, which authorized the creation of a special tribunal to try Kaiser
Wilhelm II".
8
The treaty mandated the German Government to hand over to the
allied and associated powers all persons accused of having committed an act in
violation of the laws and customs of war. Additionally, persons guilty of criminal
7
The Versailles Treaty, June 28, 1919. Available at: http://avalon.law.yale.edu/imt/partvii.asp,
accessed on 04.06.2012. This article is considered to be the starting point towards criminalization
of aggression, which has been followed by its introduction in the constituent instrument
establishing the Nuremberg International Military Tribunal and the Charter of the Tokyo
International Military Tribunal for the Far East at the end of World War II although its precise
definition, for the purposes of individual criminal responsibility, has been a matter of contention.
There have been no prosecutions for aggression following the Nuremberg and Tokyo trials, and this
crime remained in a state of lethargy until the establishment of the International Criminal Court
(ICC) in 1998. Article 5, ICC Statute, includes aggression among the crimes within the Court's
jurisdiction. At the same time, Article 5(2) stipulates that the jurisdiction of the Court would not be
exercised for aggression until a generally accepted definition of the crime was adopted. This
definition was ultimately agreed upon at the first Review Conference of the ICC Statute, in Uganda
(Kampala Conference), in June 2010 (new Article 8bis). "Source: Oxford Bibliographies".
8
Laura Barnett, the International Criminal Court: History and Role, available at:
http://www.parl.gc.ca/content/LOP/ResearchPublications/prb0211-e.htm#intro, accessed on
04.06.2012.
7
acts against the nationals of one of the allied will be brought before the military
tribunals of that Power
9
. "Germany never accepted the provisions, and
subsequently a compromise was reached whereby the Allies would prepare lists of
German suspects, but the trials would be held before the German courts".
10
Ultimately, Wilhelm II did not stand before a trial. He fled his country and went
into exile in the Netherlands, which had not taken part in the war and had refused
to extradite him until his death in 1941. As for persons accused of violating laws
and customs of war, trials were held before the German Supreme Court in Leipzig.
However, only twelve trials were held in which the accused received either
acquittals or mild imprisonment. "Two of the judgments of the Leipzig court
involving the sinking of the hospital ships Dover Castle and Llandovery Castle,
and the murder of the survivors, mainly Canadian wounded and medical
personnel, are cited to this day as precedents on the scope of the defense of
superior orders"
11
.
The Peace Treaty of Sevres was reached between the Allied and the Ottoman
Empire in August 1920. Among other things, the treaty provided for an
international criminal trial for the crimes committed against the Armenians during
World War I, but Turkey was not responsive to it and never ratified the treaty.
Rather it set up the Turkish Military Tribunal, which prosecuted dozens of Turkish
9
Articles 228 and 229 of The Versailles Treaty of June 28, 1919. Available at
http://avalon.law.yale.edu/imt/partvii.asp, accessed on 04.06.2012.
10
Schabas, 2007, p. 4.
11
ibid p. 4.
8
defendants.
12
Although these attempts had failed to establish a court, it directed
the international focus towards the importance on an international criminal court,
and "they stimulated many international lawyers to devote their attention to the
matter during the years that followed".
13
An important leap in the development of international criminal law came in the
aftermath of World War II. The horrors of this war motivated the Allied powers to
"place among their principal war aims the punishment, through the channel of
organized justice, of those guilty for these crimes, whether they have ordered them,
perpetrated them, or participated in them".
14
This determination from the Allied
powers led to the first ad hoc international criminal tribunal based on The 1945
London Agreement that established the International Military Tribunals for major
war crimes, and to which the charter of the International Military Tribunal was
annexed. Those tribunals were the International Military Tribunal at Nuremberg
in Germany, which aimed to prosecute leaders of the defeated Nazi Germany, and
the International Military Tribunal for the Far East (Tokyo Trials) to try the
leaders of the Empire of Japan.
The tribunals were courts convened jointly by the victorious Allied forces of World
War II, but the "treaty was eventually adhered to by nineteen other States who,
although they played no active role in the Tribunal's activities or the negotiation of
12
See Vahakn N. Dadrian, The Turkish Military Tribunal's Prosecution of the Authors of the
Armenian Genocide: Four Major Court-Martial Series, Holocaust and Genocide Studies, Volume
11, Issue 1, Pp. 28-59.
13
Schabas, 2007, p. 5.
14
Declaration of St James's Palace, London, 13 January, 1942, available at: http://www.coe.int/
t/dg4/education/remembrance/Source%5CPublications_pdf%5CBulletinSpecialApril2009_EN.pd
f, accessed on 05.06.2012.
9
its statute, sought to express their support for the concept and indicate the wide
international acceptance of the norms the Charter set out".
15
The Nuremberg Trials concluded with prosecution of twenty-four defendants who
received judgments ranging from sentence to death to acquittal. The International
Military Tribunal for the Far East tried twenty-eight defendants who were found
guilty and received various sentences.
Following the Nuremberg Trials, the Allies established military tribunals in their
areas of control in which some allied nationals were prosecuted.
16
In addition to
that, Germany itself prosecuted some defendants after the conclusion of
Nuremberg Trials
17
.
The impact of Nuremberg and Tokyo trials on international criminal law is quite
significant; they "produced a large number of judgments, which have greatly
contributed to the forming of case law regarding individual criminal responsibility
under international law"
18
. Furthermore, the crimes that came within the
jurisdiction of the tribunals were clearly defined
19
. Additionally, the trials
"established the principle of individual criminal accountability without exception
to any individual throughout the governmental hierarchy or military chain of
15
Schabas, 2007, p. 6.
16
See Bassiouni, 1980, p. 9.
17
ibid p.10.
18
Greppi, Op. cit.
19
According to article 6 those crimes were: crimes against peace, war crimes and crimes against
humanity. Charter of the International Military Tribunal, available at:
http://www.icrc.org/ihl.nsf/FULL/350?OpenDocument, accessed on 05.06.2012.
10
command"
20
. This is important, as individuals were attached some legal duties
under international law, which, until then, was regulating relations between states.
On the other hand, however, "these tribunals were military courts created by the
victors whose jurisdiction was founded on unconditional surrender"
21
.
In response to the Nazi acts, the Genocide Convention was adopted in 1948. Article
1 of the convention provides that "the Contracting Parties confirm that genocide,
whether committed in time of peace or in time of war, is a crime under
international law which they undertake to prevent and punish"
22
. In the same year,
the International Law Commission was established by the United Nations General
Assembly and assigned to determine the "possibility of establishing an
international judicial organ for the trial of persons charged with genocide or other
crimes over which jurisdiction will be conferred upon that organ by international
conventions"
23
. The International Law Commission prepared several draft statutes
for a permanent international criminal court, but opinion differences during the
cold war era made any further developments impossible. In 1989 when Trinidad
and Tobago suggested to the United Nations General Assembly an international
judicial body to try drug traffickers, and the suggestion received support from
many countries
24
. In 1990, the international law commission submitted a report
20
http://untreaty.un.org/cod/icc/general/overview.htm, accessed on 05.06.2012.
21
Barnett, Op. cit.
22
Convention on the Prevention and Punishment of the Crime of Genocide, available at:
http://www2.ohchr.org/english/law/genocide.htm, accessed on 06.06.2012.
23
The General Assembly resolution 260 B (III) of 9 December 1948, available at: http://daccess-
dds-ny.un.org/doc/RESOLUTION/GEN/NR0/044/31/IMG/NR004431.pdf?OpenElement,
accessed on 06.06.2012.
24
http://www.icccpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/Chronology+of+the+
ICC.htm, accessed on 06.06.2012.
11
that went beyond this specific crime. Subsequently, "in 1994 the Commission
submitted the final version of its draft statute for an international criminal court to
the General Assembly"
25
.
The atrocities of former Yugoslavia played a double rule in the process of creating
an International Criminal Court. On one hand, they delayed the discussions about
establishing a permanent international criminal court. On the other hand, the
atrocities gave a huge boost to the international criminal justice by establishing the
ad hoc international criminal tribunals for the former Yugoslavia (ICTY) by the
United Nations Security Council.
However, the ICTY was not the only ad hoc tribunal that set up by the Security
Council during this period, in fact another ethnic conflict erupted in Rwanda in
1994. The mass atrocities in the Balkans and Rwanda led the United Nations to
reconsider the idea of international criminal tribunals by creating the ICTY in 1993
and the International Criminal Tribunal for Rwanda (ICTR) in 1994 under Chapter
VII powers of the Security Council.
The ICTY was established by the Security Council's resolution 827, passed on May
25, 1993, with the aim of putting "an end to such crimes and to take effective
measures to bring to justice the persons who are responsible for them"
26
. The court
was given jurisdiction over war crimes, crimes against humanity and genocide
25
Schabas, 2007, p. 10.
26
Preamble of the Security Council's Resolution 827, available at:
http://www.unhcr.org/refworld/docid/3b00f21b1c.html, accessed on 06.06.2012.
12
committed in the territory of the former Yugoslavia after 1 January 1991.
27
As of
July 2017 "the ICTY has charged over 160 persons ... more than 83 individuals
have been convicted and currently 7 people are in different stages of proceedings
before the Tribunal"
28
.
The ICTR was established in November 1994 by the United Nations Security
Council's Resolution 955 and has jurisdiction over genocide, crimes against
humanity, and war crimes
29
. The ICTR's Statute "closely resembles that of the
International Criminal Tribunal for the former Yugoslavia"
30
, and the two
tribunals shared the same Appeals Chamber and were guided by the same chief
prosecutor until 2003 when the ICTR appointed its own prosecutor.
As of July 2017, the ICTR have indicted 93 people; 62 were sentenced, 14 were
acquitted, 5 transferred to other jurisdictions, and 14 Acquitted and released.
31
Both tribunals have contributed in the progress of international criminal justice.
For instance, the ICTY has found that sexual violence, such as rape and
enslavement, can constitute a crime against humanity.
32
Moreover, the court
indicted Slobodan Milosevic while he was still in office as head of state
33
.
27
See articles 4 and 5 of the Statute of the International Tribunal for the Former Yugoslavia,
available at: http://www1.umn.edu/humanrts/icty/statute.html, accessed on 06.06.2012.
28
ITCY website, available at: http://www.icty.org/sections/AbouttheICTY, accessed on 06.07.2017.
29
ICTR Statute, Article 2 - 4, available at: http://www.icls.de/dokumente/ictr_statute.pdf,
accessed on 06.06.2012.
30
Schabas, 2007, p. 12.
31
ICTR website, available at: http://www.unictr.org/Cases/StatusofCases/tabid/204/Default.aspx,
accessed on 06.07.2017.
32
Kunarac et al, Appeals judgment, para. 150, 151. Available at:
http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf, accessed on 06.06.2012
33
http://www.icty.org/sid/10058, accessed on 06.06.2012.
Details
- Pages
- Type of Edition
- Erstausgabe
- Publication Year
- 2017
- ISBN (PDF)
- 9783960676799
- ISBN (Softcover)
- 9783960671794
- File size
- 11.5 MB
- Language
- English
- Publication date
- 2017 (September)
- Keywords
- Law International Criminal Law ICC Darfour UN Security Council Sudan
